SA STONE STUDIO (PTY) LTD - STANDARD TERMS AND CONDITIONS
DEFINITIONS
Customer means the Customer in terms of the application form to which this document is attached as an annexure;
(PTY) LTD means SA STONE STUDIO (PTY)LTD, Registration Number: 2019/013638/07
Goods means any products offered and/or services rendered by the (PTY) LTD and supplied to the Customer;
Agreement/Contract: means these standard terms of agreement;
Domicilium citandi et executandi means the address for delivery of all notices, pleadings and correspondence;
The Act means the National Credit Act 34 of 2005
Agent means the person acting on behalf of the Customer placing orders and receiving Goods.
Words and expressions defined in any particular sub-clause shall, for the purposes of the particular clause of which that sub clause forms part, bear the meaning assigned to such words and expressions in that sub clause;
Any reference to a gender includes the other genders;
Any reference to natural persons includes legal persons and vice versa;
Any reference to the singular includes the plural;
Any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time;
THESE TERMS AND CONDITIONS TO PREVAIL
It is recorded that the only basis upon which the (PTY) LTD is prepared to do business with the Customer is on the basis that, notwithstanding anything in the Customers enquiry, order or other documentation or discussion to the contrary, the terms and conditions contained herein shall constitute the sole terms of the contract between the (PTY) LTD and the Customer.
No amendments to these Standard Terms and Conditions, extension of time, waiver, relaxation or suspension shall be binding upon the (PTY) LTD unless recorded in a written document signed by an authorized representative of the (PTY) LTD. Any extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect of which it was made or given.
Both parties, the Customer and the (PTY) LTD acknowledge that this agreement is not a credit agreement as defined in the National Credit Act 34 of 2005 where the Customer is a juristic person (company, close corporation, trust) with an asset value or annual turnover exceeding R1 million.
QUOTATIONS
Any written quotation given by the (PTY) LTD constitutes an offer to the Customer which shall be open for acceptance by the Customer for a period of 7 (SEVEN) days after the date thereof, failing which it shall automatically lapse. No acceptance of a quotation by the Customer shall be valid unless a duplicate copy of the quotation is duly signed by the Customer and received by the (PTY) LTD within the aforesaid 7 (SEVEN) day period.
The quotation is based on rates of exchange, freight charges, insurance, railage, costs of labour , material, quantities, and other charges ruling at the date of quotation. Any variations occurring subsequent to the date of the quotation in any of the aforesaid rates, charges or changing quantities, as the case may be, shall entitle the (PTY) LTD to vary the amount of the quotation accordingly.
The quotation is based on the quantities, specifications and other information supplied to the (PTY) LTD by or on behalf of the Customer.
PLACING OF ORDERS
All orders placed by the Customer shall be in writing and delivered to the sales representatives of the (PTY) LTD offices or e- mail to info@sastonestudio.co.za
Orders placed by the Customer shall not be binding until accepted by the (PTY) LTD.
If the (PTY) LTD is unable to provide and/or deliver some or all of the goods ordered by the Customer for any reason beyond the (PTY) LTD control, including but not limited to lack of instruction from the Customer, stock shortage, industrial dispute or breakdown, government action, state of war, riot, civil disturbance or any other act of God, the (PTY) LTD may in its sole discretion, cancel the whole or any part of the Customer order. In the event of such cancellation, the (PTY) LTD shall not be liable to the Customer for any loss, whether in contract or otherwise caused thereby.
The (PTY) LTD reserves the right in its sole discretion to suspend further orders by and/or deliveries to the Customer on credit for as long as the Customer:
a. is in default of its payment obligations or any other term of this contract;
b. is unable to pay its debt; or
c. seeks to effect any compromise with any of its creditors; or
d. is placed under an order of sequestration, judicial management, liquidation (whether provisional or final), business rescue; or
e. is the subject of any resolution passed in order to enable the Customer to be wound up or dissolved.
PRICE AND PAYMENT
Orders, other than those in respect of which a written quotation is given and duly accepted, are accepted by the (PTY) LTD only on the basis that the prices charged will be those ruling at the date of delivery of the goods, unless otherwise expressly stated.
Deposit shall be paid as per quotation stated. The balance shall be paid in cash or EFT, free of exchange, deduction or set-off within 30 (THIRTY) days after statement date. Unless otherwise expressly stated, prices are exclusive of value-added tax which shall be for the account of the Customer. The Customer shall pay or refund to the (PTY) LTD the amount of the value-added tax simultaneously with the price.
The Customer shall be obliged to pay to the (PTY) LTD in addition to the purchase price:
a. the amount of any tax, duty or other charge of any nature whatsoever imposed by any law, regulation or enactment of, whatsoever nature which comes into force on a date after the date on which any price charged is determined; and
b. any other additional costs of any nature whatsoever arising due to factors beyond the control of the (PTY) LTD.
The Customer shall be responsible for the costs for delivery of the goods to the designated premises at the (PTY) LTD rate ruling at the date of delivery, unless otherwise expressly stated.
Any expenses incurred by the (PTY) LTD at the instance of the Customer in modifying or otherwise altering or making additions to the quantities or specifications of the goods, and any expenses arising as a result of suspension of work by the (PTY) LTD due to instructions given, or a failure to give instructions by the Customer, shall be added to the price.
A certificate issued by any director or manager of the (PTY) LTD reflecting the amount due by the Customer to the (PTY) LTD at any given time, shall be prima facie evidence of the amount due by the Customer to the (PTY) LTD and such certificate shall be sufficient for judgment, provisional sentence or any other legal proceedings.
The Customer may not exceed the credit amount granted by the (PTY) LTD without prior arrangements being made with an authorized representative of the (PTY) LTD and confirmed in writing.
Returns, if accepted by the (PTY) LTD, at its sole discretion and upon such terms as the (PTY) LTD may prescribe, shall be credited less a minimum of 10% (TEN PERCENT) as a handling charge, subject to the goods being in a marketable condition and provided further that the Customer shall be liable for all costs of delivery to the Customer’s designated site.
DELIVERY / SERVICES / PRODUCT (GOODS)
Delivery in terms of orders and accepted quotations shall only be effected on payment in full or approval of the credit facilities.
Any delivery date indicated by the (PTY) LTD, whether in the quotation or otherwise, shall merely be regarded as the estimated date of delivery and shall not bind the (PTY) LTD to effect delivery on or near such date.
The Customer shall accept delivery whenever delivery is tendered and shall not be entitled to step back from the contract nor to withhold or hold back any payment nor to a reduction in price nor to any other right or remedy against the (PTY) LTD, its agents or any other person for whom it is liable in law whether for losses, costs, damages, expenses, interest or otherwise on account of delays in effecting delivery, partial delivery or non-delivery whether occasioned by any negligent act or omission on the part of the (PTY) LTD, its employees, agents or any other persons for whom it is liable in law, or not.
The Customer shall be liable for all costs and losses to the (PTY) LTD caused by it’s failure or refusal to take timeous delivery of the goods form the (PTY) LTD.
The Customer shall be obliged to procure that the designated site for delivery shall be easily accessible to road transport vehicles.
The (PTY) LTD vehicles will only leave the public road and enter the designated site if the designated site is safe and easily accessible.
If the Customer fails or refuses to furnish the information necessary to enable delivery to be effected, or if it fails or refuses to take delivery, the goods shall be deemed to have been delivered to the Customer upon notification by the (PTY) LTD to the Customer to that effect.
A delivery note/ client sign off form signed by the Customer, its employee, agent or representative shall constitute proof, on its mere production, that the goods delivered thereunder accorded with the quality and quantity reflected on the delivery note.
Full delivery in accordance with the (PTY) LTD records shall be deemed to have been made unless any discrepancy and/or shortfall is specifically recorded on the delivery note and reported to the (PTY) LTD in writing within 24 (TWENTY FOUR HOURS) after delivery.
The risk of fractures, cracks and any other damage is possible during handling of stock. The (PTY) LTD SHALL not accept responsibility for damage that may occur during the handling of stock by the Customer, its employees, agent or representative.
The colors of products cannot be guaranteed and may the colors and/or shades of any product vary from the original samples.
The (PTY) LTD shall not be liable for any damages which may result during handling or installation or from the improper placement of tiles, brackets, frameworks, walls, cupboards, design layouts, improper selection of patterns or blending of colors.
The (PTY) LTD shall not be responsible for scratches, cracks or chips on work areas and floors which may occur depending on type of usage, force applied or any other factor.
WARRANTIES
No warranties or representations, express or implied or tacit, which are not set forth in this agreement shall be binding on the (PTY) LTD.
OWNERSHIP
Ownership of the goods shall not pass to the Customer until the price has been paid in full.
RISK
Notwithstanding that the ownership in the goods shall not pass to the Customer until payment of the entire price in respect of the goods in question has been effected, the goods shall be at the risk of the Customer who shall be responsible for all loss or damage thereto howsoever arising, upon the goods leaving the (PTY) LTD premises.
BREACH
Subject to clause 2 below, if the Customer: breaches any of the terms or conditions hereof or any other agreement with the (PTY) LTD; or fails to pay any amount payable by it on due date; or commits any act of insolvency or endeavors to compromise generally with its creditors; or does or causes to be done anything which may prejudice the (PTY) LTD rights hereunder or at all; or allows any judgment against it to remain unsatisfied for 7 (SEVEN) days; or is placed into provisional or final liquidation or judicial management or under provisional or final sequestration or if his estate is voluntarily surrendered or apply for business rescue: The (PTY) LTD shall have the right, without prejudice to any other right which it may have against the Customer, to treat as immediately due and payable all outstanding amounts which would otherwise become due and payable in due course and to claim such amounts as well as any other amounts in arrears and to cease performance of its obligations hereunder as well as under any other contract with the Customer.
Any dispute, difference in opinion or claim which is based on a liquid claim or document, which stems from this agreement or which has to do with this agreement, will at the election of the(PTY) LTD, be resolved through the process of arbitration. The dispute, difference in opinion or claim will be submitted to the “South African Chamber of Arbitration”, who will appoint an arbiter to resolve this dispute, difference in opinion or claim in accordance with the Rules for Speedy Arbitration of Financial Claims, which rules are available onwww.arbitrationsa.co.za. This clause does not exclude the right of the (PTY) LTD to institute legal action in any competent Court of Law with the necessary jurisdiction as the (PTY) LTD has an exclusive sole discretion in which forum to institute its claim.
Any judgment passed by The South African Chamber of Arbitration is final and binding on the parties, and no party will have the right to appeal against the judgment. Any order by the arbiter of The South African Chamber of Arbitration is fully enforceable by any court which has the necessary jurisdiction.
CESSION AND FURTHER SECURITY BY CUSTOMER
In execution of this agreement and the (PTY) LTD request for security, the Customer hereby cedes, transfers and makes over to the (PTY) LTD his/her right, title and interest in and to all the book debts of the Customer, both future and present of whatsoever nature and from whatsoever cause arising, as security for the abovementioned and/or any indebtedness of the Customer to the (PTY) Ltd arising out of the obligation referred to in this agreement or any payment made or liability incurred hereunder.
The cession shall endure and be of full force and effect until all undertaking and all liabilities of the Customer referred to in this agreement has been met / fulfilled and / or been paid by the Customer to the (PTY) LTD or otherwise discharged.
The (PTY) LTD reserves the right to require, at any time, satisfactory security from the Customer for the due performance of any of the Customer’s obligations hereunder. If the (PTY) LTD so requires, the Customer shall deliver to the (PTY) LTD prior to the (PTY) LTD complying with any of its obligations hereunder, such security acceptable to the (PTY) LTD. If such security is not furnished within 7 (SEVEN) days after any such demand, the (PTY) LTD shall be entitled to withdraw any credit facility granted to the Customer in whole or in part.
PERSONAL GUARANTEE AND JOINT AND SEVERAL LIABILITY CLAUSE
The customer warrants that the agent acting on behalf of the customer is duly authorized to act on behalf of the customer.
Personal Guarantee and Co-Debtorship The Agent, by their signature hereto, binds him/her/themselves in their personal capacity as surety and co-principal debtor, jointly and severally with the Customer (the "Principal Debtor"), in favour of the (PTY) LTD for the due and punctual performance of all obligations and the payment of all sums which are now, or may at any time hereafter, become or be owing by the Customer to the (PTY) LTD from any cause whatsoever.
Nature of Liability The Agent acknowledges that their liability under this clause is joint and several, meaning the (PTY) LTD , at its sole discretion, elect to recover any outstanding amounts from the Customer, the Agent, or both, without first having to exhaust its legal remedies against the Customer.
Waiver of Benefits The Agent hereby expressly renounces the benefits of:
Excussion: The right to require the (PTY) LTD to first proceed against and exhaust the assets of the Customer before seeking payment from the Agent.
Division: The right to require the debt to be divided among multiple sureties (if applicable).
Cession of Action: The right to demand that the (PTY) LTD transfers its claims against the Customer to the Agent upon payment.
Continuing Guarantee This suretyship shall be a continuing guarantee and shall remain in full force and effect notwithstanding any fluctuation in, or temporary extinction of, the Customer's indebtedness to the (PTY) LTD. It may only be revoked by written notice to the (PTY) LTD, and such revocation shall only apply to debts arising after the date of receipt of such notice.
GENERAL
The Customer shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this contract to any third party.
The (PTY) LTD may cede or assign any rights and/or obligations which it may have in terms of this contract, at its sole discretion, to any third party without giving any notice to the Customer.
The Customer shall be liable for all costs incurred by the (PTY) LTD in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
The Customer will be bound by all admissions or acknowledgements of indebtedness made or given by the Agent to the (PTY) LTD.
The Agent chooses the same physical and email address of the Customer (Principal Debtor) as the address where all notices, correspondence, legal documents will be received.
The Agent hereby consents in terms of Section 45 of the Magistrate's Court Act 1944, to the (PTY) LTD taking any legal proceedings for the recovery of moneys claimable hereunder or otherwise in the Magistrate's Court for any district having jurisdiction in respect of my person by virtue of Section 28 of the aforesaid Act. Notwithstanding the aforegoing, the (PTY) LTD shall be entitled in its discretion to take any such legal proceedings in any other Court of competent jurisdiction or to proceed with Arbitration at the South African Chamber of Arbitration and according to its rules available atwww.arbitrationsa.co.za.
Regardless of the place of execution, performance or domicile of the parties, this contract and all modifications and amendments shall be governed by or construed under and in accordance with the laws of South Africa.
Should the Customer be in default of any of the terms contained in the contract, the (PTY) LTD shall be entitled in its sole discretion to institute action against the Customer in any competent court of law or at the South African Chamber of Arbitration and the Customer hereby consents to the jurisdiction of the Magistrate’s Court in terms of Section 45 of Act 32 of 1944 as amended as well as to the mentioned Arbitration, which election shall be made exclusively according to the (PTY) LTD soles discretion.
The Customer consents to the (PTY) LTD instructing a tracer if necessary and consent that the (PTY) LTD may compile and/or request a credit profile from any credit bureau as well as a bank report from any financial institution.
All the provisions of this agreement are severable and no provision shall be affected by the invalidity of any other provision of this agreement.
This Agreement together with any invoices constitutes the entire agreement between the parties regarding the subject of the Agreement. It supersedes all previous communications, negotiations, representations and agreements between them in that regard.
